2009 Kansas Code
Chapter 60 PROCEDURE, CIVIL
Article 2 RULES OF CIVIL PROCEDURE
60-245a. Subpoena of records of a business not a party.

60-245a

Chapter 60.--PROCEDURE, CIVIL Article 2.--RULES OF CIVIL PROCEDURE

      60-245a.   Subpoena of records of a business not a party. (a) As used in this section:

      (1)   "Business" means any kind of business, profession, occupation, calling or operation of institutions, whether carried on for profit or not.

      (2)   "Business records" means writings made by personnel or staff of a business, or persons acting under their control, which are memoranda or records of acts, conditions or events made in the regular course of business at or about the time of the act, condition or event recorded.

      (b)   A subpoena duces tecum which commands the production of business records in an action in which the business is not a party shall inform the person to whom it is directed that the person may serve upon the attorney designated in the subpoena written objection to production of any or all of the business records designated in the subpoena within 14 days after the service of the subpoena or at or before the time for compliance, if the time is less than 14 days after service. If such objection is made, the business records need not be produced except pursuant to an order of the court upon motion with notice to the person to whom the subpoena was directed.

      Unless the personal attendance of a custodian of the business records and the production of original business records are required under subsection (d), it is sufficient compliance with a subpoena of business records if a custodian of the business records delivers to the clerk of the court by mail or otherwise a true and correct copy of all the records described in the subpoena and mails a copy of the affidavit accompanying the records to the party or attorney requesting them within 14 days after receipt of the subpoena.

      The records described in the subpoena shall be accompanied by the affidavit of a custodian of the records, stating in substance each of the following: (1) The affiant is a duly authorized custodian of the records and has authority to certify records; (2) the copy is a true copy of all the records described in the subpoena; and (3) the records were prepared by the personnel or staff of the business, or persons acting under their control, in the regular course of the business at or about the time of the act, condition or event recorded.

      If the business has none of the records described in the subpoena, or only part thereof, the affiant shall so state in the affidavit and shall send only those records of which the affiant has custody. When more than one person has knowledge of the facts required to be stated in the affidavit, more than one affidavit may be made.

      The copy of the records shall be separately enclosed in a sealed envelope or wrapper on which the title and number of the action, name and address of the witness and the date of the subpoena are clearly inscribed. If return of the copy is desired, the words "return requested" must be inscribed clearly on the sealed envelope or wrapper. The sealed envelope or wrapper shall be delivered to the clerk of the court. Thirty days after termination of the case, records which are not introduced in evidence or required as part of the record may be destroyed or returned to the custodian of the records who submitted them if return has been requested after notice is given.

      The reasonable costs of providing the copying of the records may be demanded of the party causing the subpoena to be issued. If the costs are demanded, the records need not be produced until the costs of copying are advanced.

      (c)   The subpoena shall be accompanied by an affidavit to be used by the records custodian.

      (d)   Any party may require the personal attendance of a custodian of business records and the production of original business records by causing a subpoena duces tecum to be issued.

      (e)   Notice of intent to request the issuance of a subpoena pursuant to this section where the attendance of the custodian of the business records is not required shall be given to all parties to the action at least 10 days prior to the issuance thereof by the party requesting issuance of the subpoena. A copy of the proposed subpoena shall also be served upon all parties along with such notice. In the event any party objects to the production of the documents sought by such subpoena prior to its issuance, the subpoena shall not be issued until further order of the court in which the action is pending. If receipt of the records makes the taking of a deposition unnecessary, the party who caused the subpoena for the business records to be issued shall cancel the deposition and shall notify the other parties to the action in writing of the receipt of the records and the cancellation of the deposition.

      After the copy of the record is filed, a party desiring to inspect or copy it shall give reasonable notice to every other party to the action. The notice shall state the time and place of inspection. Thirty days after termination of the case, records which are not introduced in evidence or required as part of the record may be destroyed or returned to the custodian of the records who submitted them if return has been requested after notice has been given.

      History:   L. 1985, ch. 196, § 1; L. 1997, ch. 173, § 25; L. 2000, ch. 145, § 1; L. 2004, ch. 176, § 1; July 1.